The
issue presented in the instant appeal is the amount of
permanent partial disability impairment for bilateral carpal
tunnel syndrome. On February 9, 2015, the claims
administrator granted a 0% permanent partial disability
award. The Workers' Compensation Office of Judges
reversed the claims administrator's Order in a decision
dated April 19, 2016, and granted Mr. Williams a 12%
permanent partial disability award. This appeal arises from
the Board of Review's Final Order dated October 11, 2016,
in which the Board reversed the decision of the Office of
Judges, and granted Mr. Williams a 2% permanent partial
disability award for bilateral carpal tunnel syndrome. The
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
is appropriate under Rule 21 of the Rules of Appellate
Procedure.

On
December 11, 2012, Mr. Williams filed a report of injury
alleging that he had sustained bilateral carpal tunnel
syndrome as a result of his work-related activities as an
electrician and miner. Syed Zahir, M.D., signed the
physician's portion of the application and indicated that
Mr. Williams's diagnosis of bilateral carpal tunnel
syndrome was work-related. The claims administrator denied
the application by Order dated April 9, 2013, and found the
condition not to be causally related to his employment. Mr.
Williams timely protested the claims administrator's
Order.

Mr.
Williams introduced into the record an independent medical
examination by Bruce Guberman, M.D., dated June 5, 2013. Dr.
Guberman concluded that Mr. Williams suffered from bilateral
carpal tunnel syndrome as a result of using his hands
repeatedly at work. Although Dr. Guberman conceded that Mr.
Williams had a predisposing factor of obesity, Dr. Guberman
was of the opinion that Mr. Williams would not have developed
carpal tunnel syndrome but for his work exposure. By final
decision dated November 25, 2013, the Office of Judges
reversed the rejection of the claim by the claims
administrator and held the claim compensable for the
diagnosis of bilateral carpal tunnel syndrome.

Mr.
Williams underwent carpal tunnel release surgery performed by
Philip J. Branson, M.D., at Princeton Community Hospital.
Following the successful surgery, Marsha Bailey, M.D.,
evaluated Mr. Williams and completed an independent medical
evaluation on January 26, 2015. In her report, Dr. Bailey
concluded that Mr. Williams had reached his maximum degree of
medical improvement with no impairment attributable to
occupationally related bilateral carpal tunnel syndrome. She
found that Mr. Williams had a full range of motion in both
wrists. Because of his heavily callused hands and grease
stains, Dr. Bailey believed that Mr. Williams was still
performing manual hand activities on a regular basis. She
rated Mr. Williams at 4% upper extremity whole person
impairment. However, based upon the history that his symptoms
have not only persisted but worsened after his occupational
exposure at Performance Coal Company, she apportioned the
entire 4% impairment to non-occupational risk factors. Dr.
Bailey's final recommendation was for a 0% whole person
impairment rating for bilateral carpal tunnel syndrome. Based
upon Dr. Bailey's recommendation, the claims
administrator granted a 0% award by Order dated February 9,
2015. Mr. Williams filed a timely protest.

In
another independent medical evaluaton report dated April 7,
2015, Dr. Guberman reported that surgery had improved the
claimant's symptoms. Using the American Medical
Association's Guides to the Evaluation of Permanent
Impairment, (4th Ed. 1993) Dr. Guberman
concluded Mr. Williams had 13% whole person impairment for
bilateral carpal tunnel syndrome. Dr. Guberman attributed 7%
whole person impairment to the claimant's right wrist and
a total of 6% impairment to the left wrist.

Robert
Walker, M.D., evaluated Mr. Williams and issued an
independent medical evaluation report dated July 30, 2015.
Dr. Walker found 7% whole person impairment for the right
median nerve component of the injury and 7% for the left
upper extremity. Dr. Walker combined the impairments for his
right and left upper extremities and concluded that Mr.
Williams has 14% whole person impairment due to his bilateral
carpal tunnel syndrome.

By
decision dated April 19, 2016, the Office of Judges reversed
the claims administrator's order dated February 9, 2015,
which had granted Mr. Williams a 0% permanent partial
disability award. The Office of Judges granted Mr. Williams a
12% award for bilateral carpal tunnel syndrome. In its
reasoning, the Office of Judges dismissed the evaluations of
Drs. Bailey and Mukkamala based upon an insufficient
evaluation of his activities of daily living and the
interference thereof as contemplated by Table 11, Page 48 of
the American Medical Association, Guides.

The
Office of Judges deemed the reports of Drs. Walker and
Guberman to be the most credible medical evidence of record.
However, because Drs. Guberman and Walker did not reduce
their recommendations of whole person impairment, the ALJ
reasoned that it had two options. It could affirm the claims
administrator based upon either a finding that Mr. Williams
had failed to introduce into the record credible medical
evidence in support of his protest or find reports which the
Office of Judges has already noted to be insufficiently
documented to back their conclusions. It could also simply
reduce the recommendation of impairment suggested by the
evidence of record submitted by Mr. Williams, which is
otherwise found to be credible in its methodology and
adherence to the protocols of the American Medical
Association's, Guides to conform with West
Virginia Code of State Rules § 85-20-65.5 (2006). The
Office of Judges opted to make a slight adjustment to the
impairment ratings submitted by Drs. Walker and Guberman.
After the ALJ adjusted the impairment recommendation to
conform with West Virginia Code of State Rules §
85-20-65.5, Mr. Williams was awarded 6% whole person
impairment per upper extremity for a total of 12%.

The
Board of Review reversed the decision of the Office of Judges
by Final Order dated October 11, 2016, and granted Mr.
Williams a 2% permanent partial disability award based upon
Dr. Mukkamala's 2% whole-person impairment rating. The
Board of Review ruled that the decision of the Office of
Judges was clearly wrong in view of the reliable, probative
and substantial evidence of the record. The Board of Review
took issue with the granting of a 12% permanent partial
disability award, which was not recommended by any of the
evaluators. Instead of relying upon an impairment rating from
a physician, the ALJ adjusted the ratings from Drs. Walker
and Guberman to conform with West Virginia Code of State
Rules § 85-20-65.5 (2006). The Board of Review relied
upon this Court's language in Repass v. Workers'
Compensation Division, 212 W.Va. 86, 569 S.E.2d 162
(2002), to conclude that permanent partial disability awards
are solely to be issued on the basis of impairment ratings
from doctors. The Board of Review discussed that subsequent
memorandum decisions have elaborated on this issue, including
Magnatech Industrial Services v. York, No. 14-0386 (
W.Va. Supreme Court, Jan. 15, 2015) (memorandum decision), in
which the Court reversed an Order that was based upon the
same type of reduction to conform to West Virginia Code of
State Rules § 85-20-65.5. The Board ultimately found the
report from Dr. Mukkamala to be the most relevant and
credible report, as it conformed with the American Medical
Association's, Guides and West Virginia Code of
State Rules § 85-20-65.5. Mr. Williams was granted a 2%
permanent partial disability award for bilateral carpal
tunnel syndrome by the Board of Review. We agree with the
reasoning and conclusions of the Board of Review.

For the
foregoing reasons, we find that the decision of the Board of
Review is not in clear violation of any constitutional or
statutory provision, nor is it clearly the result of
erroneous conclusions of law, nor is it based upon a material
misstatement or mischaracterization of the ...

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